14 Mass. App. Ct. 997 | Mass. App. Ct. | 1982
Assuming that it could be inferred that the defendant had just made a sale of eight bags of heroin and was waiting for the purchaser to count out and hand over the money, it was at least equally inferable that the defendant had just purchased the heroin for himself and was waiting for the seller to confirm correct payment. See Commonwealth v. Senati, 3 Mass. App. Ct. 304, 305-306 (1975). The Commonwealth’s expert witness offered no evidence about the use of heroin from which it could be inferred that the amount of drugs seized from the defendant was more consistent with distribution than with personal use. No money or other items consistent with drug sales were found on the defendant, contrast Commonwealth v. Davis, 376 Mass. 777, 779 (1978); there was nothing about the packaging, size or value of any of the bags to indicate that sales were intended, contrast Commonwealth v. Scala, 380 Mass. 500, 511 (1980); no contact between the defendant and any known drug users was observed, contrast Commonwealth v. Cooke, 3 Mass. App. Ct. 708 (1975); there was no evidence that the defendant was not a user of drugs, contrast Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 614 (1976); and there was nothing to show that the defendant’s drugs were part of a larger “stash”, contrast Commonwealth v. Brown, 12 Mass. App. Ct. 988 (1981). Compare Commonwealth v. Wooden, 13 Mass. App. Ct. 417, 418-419, 422-423
The judgment on indictment No. 034144 is reversed, and the matter remanded to the Superior Court where a finding of not guilty is to enter on so much of that indictment as charges the defendant with intent to distribute heroin. The defendant is then to be resentenced on the finding against him on the lesser offense of possession of heroin. G. L. c. 278, § 12.
So ordered.